Wednesday, 29 March 2017

Judicial control of EU foreign policy: the ECJ judgment in Rosneft

Stian Øby Johansen, PhD fellow at the
University of Oslo Faculty of Law*

Yesterday
the Court of Justice of the European Union (the CJEU) delivered its judgment
in the long-awaitedRosneftcase (C-72/15, ECLI:EU:C:2017:236).
The judgment clarifies some aspects of the CJEU's jurisdiction over the Common
Foreign and Security Policy (CFSP). Moreover, it is an important precedent in
the field of EU sanctions law generally, and also resolve some questions of
interpretation that are particular to the Russian sanctions.

In this blog post I
will focus on what the judgment in Rosneft adds
to the existing case-law on the review of CFSP decisions. Thus, I will not be
discussing any of the more specific questions of EU sanctions law nor summarize
the full 197 paragraph judgment. For those looking for a quick summary of the
case, I refer to the succinct post by
Maya Lester QC at the Sanctions Law blog.

Recall that EU law sanctions (also
known as "restrictive measures") are enacted through a two-step
process. First, the Council adopts a decision under TEU Title
V, Chapter 2. This decision is then implemented in Union law (and thus
domestically in the EU member states) by virtue of a regulation adopted
under TFEU article 215. In the case of the Russia sanctions, as in
most sanctions regimes, the wording of the respective decisions and regulations
are virtually identical.

The use of two legal instruments
with different legal bases -- one decision with a CFSP legal basis, and one
regulation with a legal basis in the TFEU -- complicates matters when it comes
to the jurisdiction of the CJEU. With regard to the regulation, the judgment
in Rosneft confirms the
obvious: any regulation adopted on the basis of the TFEU article 215 is within
the jurisdiction of the CJEU (Rosneft paras
105-106). That is so irrespective of whether the regulation merely restates the
decision.

On the other hand, the decision is
a act adopted under the CFSP. The CFSP treaty provisions and acts adopted under
them are carved out of the CJEU's otherwise general jurisdiction over Union law
(see TEU article 24 and TFEU article 275). To this carve-out there are two
exceptions, a.k.a claw-backs: the CJEU has jurisdiction to monitor
compliance with TEU article 40 and to decide on the legality of decisions
concerning "restrictive measures against natural or legal persons"
(emphasis added). As I will come back to, both claw-backs were at play in Rosneft.

The remainder of this blog post
focuses on the CJEU's jurisdiction over such CFSP decisions, notably on the
clarifications and contributions the Rosneft judgment
offers to the ever-expanding case law in this field. (Key judgments in the
previous years that have discussed these issues include Case C-155/14 P H v. Council et al [2016], Case
C‑439/13 P Elitaliana SpA v. EULEX Kosovo [2015],
and Opinion 2/13 EU Accession to
the ECHR [2014].)

The general scope of the CJEU's jurisdiction over CFSP decisions

With regard to the general scope
of the CJEU's jurisdiction over CFSP decisions, the Rosneft judgment further cements the approach that has emerged in
the case-law over the last couple of years.

First, the limitations on the
CJEU's jurisdiction and the two claw-backs explicitly provided for in TEU
article 24(1) and TFEU article 275(2) have to be taken seriously. In
relation to CFSP acts, the CJEU only has jurisdiction to (1) monitor compliance
with TEU article 40, and (2) decide on the legality of restrictive measures
against natural or legal persons. (Rosneft para
60.)

Second, while recognizing the
explicit limitations on its jurisdiction in the treaties, the CJEU reiterates
that those limitations must be interpreted narrowly (Rosneft para 74-75). Or, put differently, the provisions
clawing back jurisdiction must be interpreted expansively.

What is new in Rosneft is the application of these
starting points to a new issue: do the claw-backs apply in the context of
preliminary rulings? This question must be answered separately for the each
claw-back provision (Rosneft para
61).

Preliminary rulings and the legality of CFSP decisions in light of TEU
article 40

One of the easier questions before
the CJEU in Rosneft was whether the
validity of CFSP decisions in light of TEU Article 40 could be determined in a
preliminary ruling. The identical claw-back provisions in TEU Article 24(1) and
TFEU Article 275(2) simply provide that the CJEU has jurisdiction to
"monitor compliance with Article 40 [TEU]".

There is nothing to suggest that
such monitoring may only happen e.g in actions for
annulment. In other fields of EU law, it has long been clear that the CJEU
has jurisdiction to declare Union acts invalid in preliminary rulings (see e.g.
Case 314/85 Foto-Frost [1987]).
Thus, due to the lack of an express and specific limitation, the CJEU
concluded that its jurisdiction extended also to monitoring compliance of
CFSP decisions with TEU article 40 in preliminary rulings (Rosneft paras 62-63).

The key jurisdictional question
that the Grand Chamber had to deal with in Rosneft was whether it had
jurisdiction to decide on the validity of a CFSP targeted sanctions decision in
a preliminary ruling procedure. Due to the CFSP carve-out and the peculiar wording
of the claw-back provision for restrictive measures in TEU article 24(1) and
TFEU article 275(2), there has been significant uncertainty as to the correct
answer to this question.

The relevant part of TEU article
24(1) reads as follows (emphasis added):

"The [CJEU] shall not have
jurisdiction [over the CFSP], with the exception of its jurisdiction [...] to
review the legality of certain decisions as provided for by the second
paragraph of Article 275 of the [TFEU]".

The relevant part of TFEU article
275(2) reads as follows (emphasis added):

"the Court shall have
jurisdiction [...] to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 263 of this Treaty,
reviewing the legality of decisions providing for restrictive measures against
natural or legal persons [adopted under the CFSP]"

In other words: TEU article 24(1)
limits the jurisdiction to "certain decisions as provided for" by
TFEU article 275(2), which in turn refers to "proceedings" that are
"brought in accordance with the conditions laid down" in TFEU article
263(4). The latter provision provides that actions for annulment can be
brought against acts of the EU institutions before the CJEU:

"Any natural or legal person
may [...] institute proceedings against an act addressed to that person or
which is of direct and individual concern to them and does not entail
implementing measures."

The combined text of these
provisions arguably suggests that the jurisdiction to determine the validity of
CFSP targeted sanctions decisions only extends to actions for annulment brought
by individuals. TFEU Article 263(4) ostensibly provides for the institution of proceedings for
annulment; the types of acts that may be annulled are
listed in TFEU Article 263(1)-(2). Conversely, then, the CJEU would lack
jurisdiction to determine the validity of such a decision in a preliminary
ruling. Against this, one may argue that jurisdiction to rule on the validity
of Union acts is inherent to the complete system of legal remedies that the
Union treaties establish.

How to solve this conundrum? AG
Wathelet essentially suggested that the Court should interpret TFEU article
275(2) in the context of TEU article 24(1). In particular, he emphasized the
use of the term "certain decisions" in TEU article 24(1), which
suggest that the reference in TFEU article 275(2) to TFEU
article 263(4) concerns the type of act (“restrictive measures”), and not
the type of proceedings (i.e. actions for annulment). See AG Wathelet in Rosneft,
para 61 et seq. Consequently, the validity of CFSP decisions can
be determined in any kind of proceedings -- also in preliminary rulings.

A further point is that the
French language version of TFEU article 275(2) differs from the English in a
crucial respect. It provides that the CJEU has jurisdiction "pour
controller
la légalité de certaines decisions visées à l’article 275,
second alinéa [TFUE]". This seems to suggest an interpretation
in line with that of AG Wathelet. Although AG Wathelet does not discuss
the language discrepancy directly, French is the "langue de
travail" at the CJEU, and one may speculate that AG Wathelet relied more
heavily on the French version of the treaty text than the English.

In Rosneft the CJEU reaches the same conclusion as AG Wathelet;
the CJEU has jurisdiction to determine the validity of CFSP decisions in
preliminary rulings. In doing so, the CJEU recognizes the
textual discrepancy between the otherwise identical claw-back provisions
in TFEU article 275(2) and TEU article 24(1), but not (explicitly) the
linguistic discrepancy However, it is slightly more careful than AG
Wathelet in grounding its argument in other sources than (con)text -- perhaps
because the Court is indeed aware of the discrepancy between the
language versions.

There are in particular two
supporting arguments that the CJEU relies on. First, it puts forward a systemic
argument. According to the CJEU, it is "inherent" in the Union's
"complete system of legal remedies or procedures that persons bringing
proceedings must, when an action is brought before a national court or
tribunal, have the right to challenge the legality of provisions contained in
European Union acts" (Rosneft paras
67-68).

Second, the CJEU emphasizes
the fundamental rights dimension of judicial protection (Rosneft paras 69-75).
As usual in cases on jurisdiction on CFSP acts, it refers in passing to the
concept of the "rule of law" (Rosneft para
72). But it also refers extensively to article 47 of the Charter of Fundamental
Rights (Rosneft paras 73-74).
While the Charter has been mentioned in passing before in cases concerning CFSP
decisions (notably in Case C-455/14 P H
v. Council et al. [2016]), the emphasis has usually been on
the nebulous concept of the rule of law. In Rosneft we see the reverse: an emphasis on the fundamental
right of effective judicial protection, which is laid down in positive primary
law in CFR article 47.

The conclusion that the CJEU
draws is thus built on a principled and even more solid ground than that of AG
Wathelet. The question of whether the validity of CFSP decisions can be
determined in preliminary ruling proceedings must therefore be regarded as
settled following the Rosneft judgment.

Can the Court of Justice of
European Union (‘the Court’) assert jurisdiction and provide a national court
with an interpretation of Union law in a case referred to it from a national
court under an Article 267 TFEU preliminary reference, when the subject matter
is in regard to the Common Foreign and Security Policy (CFSP)? This was one of
a number of questions referred to the Court of Justice from the High Court of
England and Wales in Rosneft (C-72/15).
This week, the Court meeting in a Grand Chamber formation, answered this
jurisdictional question in the affirmative. Given the significance of this
judgment for the law of the Common Foreign and Security Policy (CFSP), and previous
discussion of the Opinion of the Advocate General in 2016, yesterday’s
judgment was hotly anticipated given its implications for the ‘specific rules
and procedures’ that are applicable to the law of CFSP. As the Court continues
in a line of case law to clarify its jurisdiction in CFSP, it is ultimately a
question of constitutional importance for the Union’s external relations.

Rosneft concerns the EU’s restrictive measure regime, more
popularly known as sanctions. The governance scheme surrounding sanctions is a
developed body of case law, in which individuals subject to them have the
possibility to challenge them directly before the EU’s General Court, the
administrative court of the Union. Given that the locus standi (standing)
of taking actions to the Court is a narrow right, the use of preliminary
references, otherwise known as referrals from national courts, also functions
as an indirect means for legal entities to access the Court for adjudication on
matters of Union law. What makes the Rosneft case noteworthy, in
comparison to other aspects of CFSP and sanctions case law, is that it is the
first case on the Court’s jurisdiction to rule on sanctions not taken directly
to the EU General Court. Rather, the Rosneft case
arrived at the Court of Justice through the preliminary reference procedure
from a national court, in this case, the High Court of Justice (England and
Wales) in the United Kingdom, upon the basis of Article 267 TFEU.

Sanctions have a peculiarity in
their procedural sense. Firstly, it requires a CFSP Decision, done on an
Article 29 TEU legal basis. Secondly, a subsequent Regulation is decided upon
an Article 215 TFEU legal basis, which allows sanctions to be implemented
throughout the Union. Accordingly, in Rosneft, on the table was Council Decision 2014/512/CFSP, Council
Decision 2014/659/CFSP, and Council Decision 2014/872/CFSP (collectively, ‘the
Decision’). Furthermore, there was Regulation 833/2014, Regulation 960/2014,
and Regulation 129/2014 (collectively, ‘the Regulation’). The Decision taken by
the Council, where Member States as a general rule act unanimously, were
directly in response to the alleged actions of Russia in Ukraine.
Substantively, the applicant contested the implementation measures by way of
Regulation taken by the British Government as a result of the CFSP Decision, of
which it too was part of, on the grounds that it contained ambiguities. Accordingly,
the substantive question was whether the CFSP Decision was one the one hand
sufficiently clear, or on the other, imprecise?

In Rosneft, both the Decision and accompanying Regulation were
challenged. Yet, it is unclear whether the Court has the jurisdiction to fully
answer the questions asked of it, given the first legal act is adopted on a
CFSP legal basis (the Decision), and the second legal act on a non-CFSP
legal basis (the Regulation). The Court’s jurisdiction in the latter is
undisputed given its adoption on Article 215 TFEU, however, much more
speculative and up for question is the Court’s jurisdiction on the Decision,
given its adoption on a CFSP legal basis. Prior to recent treaty revision,
questions surrounding the Court’s jurisdiction rumbled for decades. However,
the Treaty of Lisbon, saw a flipping effect, in that jurisdiction of the Court
was to be assumed, unless specifically derogated from by the Treaties. One of
these derogations was acts adopted upon a CFSP legal basis, which is elaborated
in Article 24(1) TEU and Article 275 TFEU.

Firstly, Article 24(1) TEU, inter
alia, states that, ‘The Court of Justice of the European Union shall not have
jurisdiction with respect to these provisions [CFSP], with the exception
of its jurisdiction to monitor compliance with Article 40 of this Treaty and to
review the legality of certain decisions as provided for by the second
paragraph of Article 275 of the Treaty on the Functioning of the European Union.’
Secondly, Article 275 TFEU states that the Court has the jurisdiction to, ‘...rule
on proceedings, brought in accordance with the conditions laid down in the
fourth paragraph of Article 263 of this Treaty, reviewing the legality of
decisions providing for restrictive measures against natural or legal persons
adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on
European Union.’

This consequently points to
Article 263 TFEU and its fourth paragraph stating, ‘Any natural or legal person
may, under the conditions laid down in the first and second paragraphs,
institute proceedings against an act addressed to that person or which is of
direct and individual concern to them, and against a regulatory act which is of
direct concern to them and does not entail implementing measures.’ The first
and second paragraphs in Article 263 TFEU do not appear to envisage the
possibility for the Court to have the ability to answer questions on
preliminary references from national courts. The leading academic material of
EU procedural law previously acknowledged that the Court ‘may afford
possibilities’ in this area (Lenaerts et al. 2014:458), recognising that it is
by no means a settled question. This is, until the right opportunity arose to
address it, which was Rosneft.

So what did the Advocate-General
say firstly? AG Wathelet said the Court did have the jurisdiction to answer the
substantive questions of it by the national court. Yet how did he reach this
view in light of the treaties, and their apparent formulation to exclude the
Court in such matters? Whilst acknowledging the Court’s jurisdiction in CFSP
matters appears to be limited by Article 24(1) TEU and Article 275 TFEU ‘at
first sight’ (para. 39), he skirted a narrow interpretation of Article 263 TFEU
and its apparent lack of foresight for seeing preliminary references in the
equation. For the aforementioned Article 24(1) TEU and Article 275 TFEU, it can
be assumed there was there a need for them to have the intended same effect.
However, they are worded differently, and thus, the Advocate-General said,
might put out the ‘false impression’, that the Court had no jurisdiction. Thus,
he said, the two articles enable the Court ‘to review the compliance with
Article 40 TEU of all CFSP acts’, (para. 65), regardless of what way
the question ends up at the Court, that is, through a direct action, or a
preliminary reference.

The Opinion of the
Advocate-General is a demonstrative example of how the restatement of certain
constitutional provisions within primary law have the ability to be read
differently, despite the intentions of the drafters may have been for such
restatements to have the same meaning. Given this part of the Opinion of the
Advocate-General on jurisdiction, which was non-binding, what did the Court
say, and did it reach the same conclusion?

Judgment

In the judgment issued on 28
March 2017, the Grand Chamber, before going onto matters of substance, had to
handle the important question of jurisdiction, and furthermore grapple with the
admissibility of the question of jurisdiction. The Council had queried
whether the questions referred by the national court could have been answered
in respected of the Regulation alone (non-CFSP), rather than contesting the
validity of Decision (CFSP) (para. 48). Thus, along this line of thinking, the
Court would then not have to assert any jurisdiction on the CFSP legal basis,
for which the Council has always viciously defended against any judicial
incursion by the Court (Cases C-455/14 P, H v. Council; C-439/13 P Eulex
Kosovo; C-263/13 Tanzania; Opinion 2/13; and C-658/11, Mauritius). The Court rejected this Council viewpoint,
stating that it is up to national courts alone to ask questions of the Court on
the interpretation of Union law (para. 49). The Court was therefore only in a
position to not answer a reference when it fails to have a legal question in
need of answering, or is only a hypothetical question (para. 50).

The Court furthermore in its
judgment stated that only focusing on reviewing the legality of the Regulation
(non-CFSP), and not the questions asked of it as a whole by the national court,
which would not be adequately answering questions asked of it (para. 53).
Moreover, despite the sharp distinction between a CFSP act and a non-CFSP
act, in order to impose a sanction within the EU legal order, the Court noted
that they are inextricably tied. Given how sanctions are imposed in the EU
legal order, it is a perfect demonstration of the possibility of close-knit
relations between CFSP and non-CFSP legal bases, given the Court in Kadi I said the link occurs when it
has been made ‘explicitly’ (Joined Cases C-402/05 P and C-415/05 P, para. 202).
The Court in Rosneft however
hypothesized that even if the latter Regulation implementing a CFSP Decision
was to be declared invalid, that would still mean that a Member State was to
conform to a CFSP Decision. Thus, in order to invalidate a Regulation following
a CFSP Decision, the Court would have to have jurisdiction to examine that CFSP
Decision (para. 56).

Once the admissibility of
the question of jurisdiction was answered, the Court progressed onto answering
the jurisdictional questions raised, in which it concluded that, ‘Articles 19,
24 and 40 TEU, Article 275 TFEU, and Article 47 of the Charter of Fundamental
Rights of the European Union must be interpreted as meaning that the Court of
Justice of the European Union has jurisdiction to give preliminary rulings,
under Article 267 TFEU, on the validity of an act adopted on the basis of
provisions relating to the Common Foreign and Security Policy (CFSP)...’
(Ruling 1 of 3). Yet, Court’s assertion of its jurisdiction was not
completely unqualified. Rather, it must be meet one of two conditions. The
first condition that it may meet, is that it must relate to Article 40 TEU on
the Court having the jurisdiction to determine the boundary between CFSP and non-CFSP
in its border-policing role. The second condition that the Court’s allows for
the assertion of its jurisdiction, is when it involves the legality of
restrictive measures against natural or legal persons.

The remark on Article 40
TEU is significant from the Court (paras. 60-63). From some corners, the
Court has been subject for some remarks for not properly utilising this Article
for elucidating what the precise boundaries for a CFSP and non-CFSP. To
date, it has shunned such possibilities provided to it to determine the fine
lines of this providing, underling the fact that CFSP is an obscure area of the
treaties, legally speaking. Rosneft perhaps elucidates some reasons
why Article 40 TEU has not been used by the Court to date, namely that it does
‘not make provision for any particular means by which such judicial monitoring
is to be carried out’ (para. 62). Thus, given this lack of guidance, the Court
finds itself falling back on Article 19 TEU to, ‘ensure that in the
interpretation and application of the Treaties the law is observed.’ (paras. 62
and 75).

It was advocated nearly a decade
ago that rule of law concerns could be used to provide justification for the
Court’s jurisdiction in CFSP cases upon a preliminary reference (De Baere
2008:186). Whilst this can be a common phrase with large recourse in a number
of situations to justify Court actions, the Court instead of utilising this
argument alone here (para. 72), went one-step further. alluded to the EU’s
Charter on Fundamental Rights (CFR), selected Article 47 CFR, the right to an
effective remedy and a fair trial, ensuring who has ‘rights and freedoms
guaranteed by the law of the Union…the right to an effective remedy’. (para.
73), as a basis for clarifying this position on its jurisdiction.

From the Court’s perspective in
CFSP-related cases, it certainly does not want the possibility for national
courts to test the possibility for them to attempt and try invalidate Union
legal acts in whatever form (paras. 78 and 79). It it long-standing
jurisprudence of the Court stemming from Foto-Frost (314/85), that it alone has the ability to
invalidate Union law, which the national courts cannot do. Thus, national
courts only have the possibility to invalidate implementing national measures
subject to their own constitutional requirements, and not the Union legal acts
themselves. The most recent example of the Court clarifying (ie.
extending) its jurisdiction into the CFSP arena was H v. Council (C-455/14
P). Unlike H v. Council however (Butler 2016:677 and on
this blog), in which the Court asserted jurisdiction, it then proceeded to
fling the substantive matter back to the General Court for adjudication. The
Court here in Rosneft had to proceed and answer the
substantive questions itself, which conclusively, upheld the sanctions in
question.

Analysis

The Court and the Opinion of
Advocate-General on its jurisdictional points can be commended for not allowing
a legal lacuna to be created by further disenfranchising CFSP as a particular
sub-set of Union law, and ensuring it was kept as close of the normal rules
surround preliminary references as possible. Such a situation, where
jurisdiction were not asserted, could have lead national courts to not send preliminary
references to the Court in further questions seeking clarification on points of
Union law. This potential chilling effect would most certainly hamper not just
the nature of sanctions, but also the coherent interpretation of Union law as a
whole, for which the Court is the ultimate adjudicator. By coming to the
conclusion that the Court did have the jurisdiction, empowering itself with the
ability to answer the substantive questions, AG Wathelet acknowledged he was
breaking with the view of his colleague, AG Kokott, from her view provided in Opinion 2/13 on the EU’s accession
to the ECHR. AG Wathelet said that without the Court having jurisdiction, it
would undermine under Articles in the Treaties, namely, Article 23 TEU, which
guarantees access to a Court and effective legal protection (para. 66), which
albeit by an alternative method, the Court broadly arrived at the same
conclusion.

Jurisdictional questions are not
just inconsequential matters in the exercise of EU foreign policy, but have
ramifications for EU procedural law, and the constitutional framework in which
Union law operates. The Court’s judgment, clarifying jurisdiction for itself,
when it was in doubt, further widens the potential for its scope for a role in
EU foreign policy. Hence, how broad a deference is there at the Court to
questions that ultimately hinge upon ‘sensitive’ areas of policy? Do
Member States want the Court to have jurisdiction in CFSP? The Treaties do
their best to prevent it, and five of the intervening six Member States and the
Council in Rosneft pleaded
that the Court did not have the ability to rule on the validity of CFSP acts.
Yet the Court is no stranger to such questions, as it has dealt with
jurisdictional questions on sensitive areas before, albeit in a slightly
different context. The Area of Freedom, Security, and Justice (‘AFSJ’ or
‘Justice and Home Affairs’)). The Gestoras (C-354/04
P) and Segi(C-355/04 P) cases
here provide us with suitable examples. In a pre-Lisbon context, the Court said
to interpret the cases as falling outside the scope of the then Article 35(1)
TEU because they were preliminary references would not be in ‘observance of the
law’. Thus, the Court ruled in both Gestoras and Segi that jurisdiction for the
Court in that field was permissible.

Given the Court’s judgment here
in Rosneft, there is no doubt
that it had to be slightly inventive to overall what was clearly a shortcoming
in the drafting of the Treaties. For the Court to have not asserted
jurisdiction in Rosneft would
have seemed contrary to the overall premise upon which the Union is a ‘complete
system of legal remedies’, which again it cited in Rosneft (para. 66), stemming from Les Verts (294/93). Do the Treaties allow vacuums to be
created where judicial review is excluded, or does it by reasonable means
provide for judicial review? The latter was not only an easy choice, but also
the more logical one. Article 19(1) TEU states that the Court, ‘ensure that in
the interpretation and application of the Treaties the law is observed’, and
that, ‘Member States shall provide remedies sufficient to ensure effective
legal protection in the fields covered by Union law.’

This, coupled with the Court’s
own ‘Declaration by the Court…on the occasion of the Judges’ Forum organised to
celebrate the 60th anniversary of the signing of the Treaties of Rome’ made the
day before the Rosneft judgment was published, commenced with
restating the premise that the EU is, ‘is a union governed by the rule of law’.
Yet such spirited measures are always dampened by other events, and it is
hardly in fitting with recent developments at the General Court. The NF and Others v. European Council cases,
and the Orders by the General Court on 28 February 2017 (T-192/16, T-193/16,
and T-257/16), stated that it did not have jurisdiction on the question of the
legal basis upon which an ‘EU-Turkey statement’ was reached. The likelihood is
therefore that such questions about the scope of the Court’s jurisdiction in non-CFSP
matters will rumble on.

Whilst this Rosneft judgment has clarified the
scope of the Court’s jurisdiction on preliminary reference cases dealing with
CFSP-related matters, one has to ask why the litigant did not instead seek to
go straight to the EU’s General Court with an action for annulment claim,
seeking the annulment of the sanctions applying Union-wide. The Court said that
the basis for actions for annulment through direct actions from the treaties do
not constitute the only means for which sanctions are challengeable (para. 70).
Thus, from this, we can deduce that Rosneft opens
the basis for future forum shopping when legal entities are subjected to the
Union’s comprehensive sanctions regime under the auspices of CFSP in the
future.

Remaining questions on the legal
limits of CFSP as a special area of area are yet to be fully answered in a
categorical way. One example of such is the doctrine of primacy, with lingering
questions on its applicability to CFSP. Even with this, jurisdictional
questions in CFSP remain. In a recent Order of the General Court in Jenkinson v. Council (T-602/15), it
found it did have the jurisdiction to deal with a staffing case stemming from a
CSDP, under the wing of CFSP. This demonstrates the caution of the General
Court on leading the way on jurisdictional matters, preferring to let the Court
of Justice lead the way.

Nonetheless, Rosneft clarifies that CFSP is one
(small) step towards wider integration with the rest of the EU legal order.
Former Judge at the Court, Federico Mancini said once in a speech at the Danish
Supreme Court (Højesteret) in Copenhagen that without the system of preliminary
references, that the ‘roof would collapse’ (Mancini and Keeling 1991:2).
Indeed, this week’s Rosneft judgment, ensuring that Article 267 TFEU
preliminary references in cases involving CFSP can be heard, upholds this
notion rather tightly.